1) This
appeal by special leave is limited to a particular question only, namely,
correctness of the conviction of the appellant Arun Raj for an offence under
Section 302 of Indian Penal Code and the propriety of the sentence passed
thereunder by the Presiding Officer of General Court Martial under the Indian
Army Act. The short facts are these - The appellant joined the Indian Army in
the year 1983 and 1 in the year 1998 he was working as Ex-Signalman (Lance
Nayak) of 787 (Independent) Air Defence Brigade Signal Company. On 22.3.1998,
one Mr. S.S.B Rao (PW-4) was the Section In-Charge of Operator Section. At
about 1 PM, Mr. Rao returned from lunch and the appellant reported to him that
Havildar R.C Tiwari (deceased) and Havildar Inderpal (PW-3) abused him by using
the word "Gandu". On Mr. Rao making an inquiry into the same, they
replied in the negative, despite the appellant making repeated assertion that
they insulted him using the said word. The appellant also brought to the information
of Mr. Rao that in the previous night there was a heated discussion between the
appellant and the deceased and Inderpal, and the matter was reported to the
superior officer. Paulose (PW-1), after having his lunch, returned to the
barrack from the rank mess and he was relaxing in the cot. At this point of
time, he saw the appellant coming towards the door. He was wearing a half
T-shirt and lungi. The cot of the deceased was near the door and he was
sleeping on it. The appellant took out a knife which was hidden in the lungi
and stabbed the deceased on the right side of the chest. On witnessing the
incident, PW-1 was shocked and shouted to the appellant as to why he did it.

On
hearing the shout of PW-1, people came in and gathered 2 immediately. The
appellant was separated by the crowd and the deceased was sent to the hospital
where he finally succumbed to the injury. Major Prabal Datta (PW-9) testified
that there was no external injury on the body of the deceased except the stab
injury caused by a knife.

2) An FIR
was lodged at the Dehu Road Police Station vide CR- 26 of 1998 under Section
302 of Indian Penal Code. Thereafter, investigation commenced, during the
course of which the body of the deceased was sent for post mortem and an
inquest Panchnama was also prepared. On completion of the investigation, the
charge- sheet was prepared against the appellant/accused and forwarded to the
Judicial Magistrate 1st Class, Vadgaon Maval. In the meantime, since the
appellant belonged to the armed forces, court martial proceedings were
initiated under the provisions of the Army Act.

Charges
were framed against the appellant under Section 302 read with Section 69 of the
Army Act for committing civil offence, i.e., knowingly causing the death of the
deceased on 22.3.1998. On the appellant pleading not guilty, the General Court
Martial proceeded to record the evidence of witnesses. The prosecution examined
18 3 witnesses. The General Court Martial after appreciating the facts and the
evidence on record, found the appellant guilty of the offence for which he was
charged and after hearing his submission with regard to the quantum of
sentence, sentenced the appellant to undergo 7 years of rigorous imprisonment
and he was also dismissed from service for committing the offence of murder
punishable under Section 69 of the Army Act read with Section 302 of IPC.
However upon revision, the Confirming Authority by an order dated 15.12.1998
held that the sentence awarded by the General Court Martial after finding the
appellant guilty of murder under Section 69 of the Army Act read with Section
302 of IPC, was not justiciable and further observed that once the appellant
was held guilty under the abovementioned Sections, he could be either sentenced
to life imprisonment and fine or sentenced to death. Accordingly, the General
Court Martial by an order dated 15.1.1999, revised the sentence and sentenced
the appellant to imprisonment for life and dismissal from service, which was
subsequently confirmed by the Confirming Authority. Being aggrieved by this
order, the appellant filed a petition before the Chief of Army Staff under
Section 164 of the Army Act, which 4 was rejected. The appellant being
aggrieved by the same filed a writ petition before the Bombay High Court.

3) The
learned Counsel for the appellant raised two contentions before the High Court
of Judicature at Bombay in the Writ proceedings. Firstly, it was submitted that
the charge framed against the appellant was vague, as a result of which, entire
Court Martial proceedings was vitiated. The second submission was that the
intervention of High Court was required as the facts and circumstances of the
case does not justify the punishment of life imprisonment as the offence
revealed from the material evidence is only punishable under Section 304 Part
II and not under Section 302 of Indian Penal Code. As regards the first
contention, the High Court has observed that as the appellant was informed of
all the allegations put forth against him at the time of Court Martial
proceedings, the charge framed against the appellant cannot be said to be
vague. Considering the second contention, the High Court found the testimony of
PW-1 Paulose who is the eyewitness and PW-3 Haveldar Indrpal to whom the dying
declaration was given by the deceased, is reliable and, hence, observed that
there is no 5 doubt about the fact that appellant caused the death of the
deceased by stabbing him with a knife. Therefore, the submission that there was
no intention on the part of the appellant to kill the deceased as only one stab
injury was found on deceased, was rejected by the Court. The High Court while
considering the decision on which reliance was placed by learned counsel for
the accused observed, that there was no sudden quarrel and the murder was not
caused on spur of moment and no sufficient provocation is found for the offence
committed by appellant to fall under section 304 Part II of Indian Penal Code.
As the offence was found to be committed with enough time to mediate on the
action to commit the murder of deceased, appellant was said to have intention
to cause the death of the deceased. Thus, the High Court found the charge under
Section 302 of Indian Penal Code proved and the procedure under Army Act
followed without any infringement of principles of natural justice and,
accordingly, the Writ Petition was dismissed vide judgment dated 25.8.2005.

4) We now
come to the particular question to which this appeal is limited, namely,
propriety of the conviction and sentence passed 6 on the appellant for the
offence under Section 302 IPC read with Section 69 of the Army Act, 1950. Mr.K.K.Mani, the learned counsel for the appellant
contends, that, the death of the deceased was caused due to grave and sudden
provocation and, therefore, offence would fall under Exception I of Section 300
I.P.C. Further, it is contended that the offence committed by the appellant is
liable for punishment under Section 304 Part II
of the I.P.C., as there is absence of any intention on part of the appellant to
cause death.

Mr.Mani
also cited few decisions of this Court to support his submission that the
single stab injury caused by the appellant to the deceased only amounts to
offence punishable under Section 304 Part II and not
under Section 302 of I.P.C. Per contra, the learned counsel for the Union of
India submitted that, the findings of the Court Martial and the punishment
upheld by the High Court need not be interfered by this Court as the facts and
the evidence on record are enough to prove that the offence committed by the
appellant falls under Section 302 of I.P.C. It is also contended that the scope
of judicial review is for limited purpose and that cannot be used to
re-appreciate the evidence recorded in Court Martial proceedings to arrive at a
different conclusion.

7 5) We
now consider the first contention of the learned counsel for the appellant. It
is not in dispute that the cause of death of deceased is due to the stabbing by
a knife by appellant. However, it is argued on behalf of the appellant that the
appellant caused the said injury because on 23.03.1998 deceased Havildar
R.C.Tiwari and Havildar Inderpal (PW-3) abused the appellant and he was
provoked to `punish' the deceased. Thus, the stab injury caused to the deceased
was a result of such grave and sudden provocation and thus the incident took
place on spur of moment. Therefore, the case of the appellant falls under
Exception I of Section 300 of I.P.C.

At this
state itself, it is relevant to notice Section 300 of I.P.C.:

"Section
300. Murder Except in the cases hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused is done with the intention of
causing death, or- 2ndly If it is done with the intention of causing such
bodily injury as the offender knows to be likely to cause the death of the
person to whom the harm is caused, or- 3rdly If it is done with the intention
of causing bodily injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to cause death, or-
4thly 8 If the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such bodily injury
as is likely to cause death, and commits such act without any excuse for
incurring the risk of causing death or such injury as aforesaid.

Exception
I-When culpable homicide is not murder- Culpable homicide is not murder if the
offender, whilst deprived of the power of self-control by grave and sudden
provocation, causes the death of the person who gave the provocation or causes
the death of any other person by mistake or accident.

The above
exception is subject to the following provisos:- First-That the provocations
not sought or voluntarily provoked by the offender as an excuse for killing or
doing harm to any person.

Secondly-That
the provocation is not given by anything done in obedience to the law, or by a
public servant in the lawful exercise of the powers of such public servant.

Thirdly-That
the provocations not given by anything done in the lawful exercise of the right
of private defence.

Explanation-Whether
the provocation was grave and sudden enough to prevent the offence from
amounting to murder is a question of fact."

6) The
aforesaid Section provides five exceptions wherein the culpable homicide would
not amount to murder. Under Exception I, an injury resulting into death of the
person would not be considered as murder when the offender has lost his
self-control 9 due to the grave and sudden provocation. It is also important to
mention at this stage that the provision itself makes it clear by the
Explanation provided, that what would constitute grave and sudden provocation,
which would be enough to prevent the offence from amounting to murder, is a
question of fact. Provocation is an external stimulus which can result into to
loss of self-control. Such provocation and the resulting reaction need to be
measured from the surrounding circumstances. Here the provocation must be such
as will upset not merely a hasty, hot tempered and hypersensitive person but
also a person with clam nature and ordinary sense.

What is
sought by the law by creating the exception is that to take into consideration
situations wherein a person with normal behavior reacting to the given
incidence of provocation. Thus, the protection extended by the exception is to
the normal person acting normally in the given situation.

7) The
scope of the "doctrine of provocation" was stated by Viscount Simon
in Mancini v. Director of Public Prosecution, (1942) A.C. 200 at p.206:
"it is not all provocation that will reduce the crime of murder to
manslaughter. Provocation to have that result, must be such as temporarily
deprive the person 10 provoked of the power of self-control as result of which
he commits the unlawful act which caused death. The test to be applicable is
that of the effect of the provocation on a reasonable man, as was laid down by
the Court of Criminal Appeal in Rex v.

Lesbini,
(1914) 3 K.B.1116 so that an unusually excitable or pugnacious individual is
not entitled to rely on provocation which would not have led ordinary person to
act as he did. In applying the test, it is of particular importance to (a)
consider whether a sufficient interval has elapsed since the provocation to
allow a reasonable man time to cool, and (b) to take into account the
instrument with which the homicide was effected, for to retort, in the heat of
passion induced by provocation, by a simple blow, is very different thing from
making use of a deadly instrument like a concealed dagger. In short, the mode
of resentment must bear a reasonable relationship to the provocation if the
offence is to be reduced to manslaughter."

8) It is,
therefore, important in the case at hand to consider the reasonable
relationship of the action of appellant of stabbing the deceased, to the
provocation by the deceased in the form of abusing the appellant. At this
stage, it would be useful to recall the 11 relevant chain of events in brief to
judge whether there was sufficient provocation and the criterion under the
provision are satisfied to bring the offence under the Exception I. As is
already stated, on the previous night of the incidence, there was altercation
between the appellant and deceased, as the deceased had abused the appellant.
On 23.3.1998 at about 1.00 PM, the deceased complained to the Higher Officer-Mr.S.S.B.Rao
about the said incident. Thereafter, he returned to his barrack and was present
there before the happening of the incident. In the testimony, (PW-1) Paulose
states that he was also present in the same barrack after he came back from
Other Rank Mess at 2.15 PM and was relaxing on his cot which was in the corner
of the same barrack. At that time he saw the appellant coming towards the door
on which he thought that the appellant was coming for either urinal or to
collect his clothes spread out in sun. The appellant who was wearing a half
T-shirt and lungi came near the cost of the deceased which was at the door and
took out a knife from the lungi and stabbed on the right side of chest of the
deceased when he was asleep. PW-1 agreed at the time of examination of witness,
that he was shocked to see the appellant stab the deceased and he also 12
shouted at the appellant asking him what was he doing. Thus, PW- 1 was unable
to relate the actions of appellant to the abuses by deceased or the altercation
which happened the previous night.

Further,
it is clear from the testimony of the PW-1 and the evidence collected (ME-1),
that the knife which was completely made of iron and had a sharp edge was
hidden at the waistline of the lungi of the appellant. Major Prabal Datta, PW-9
was the Regimental Medical Officer at 19 AD Regt. In his cross examination, he
has stated, that there was not much time lag between the occurrence of the
incident and the deceased being rushed to the hospital. The facts like that there
was time lag of 40- 45 minute after appellant had come from the office of
Higher Officer after complaining and was present with the appellant in the same
barrack without any conversation between them, that he had got the knife which
was sharp enough to have the knowledge that it might cause death of a human
being when stabbed, that the knife was hidden and removed by appellant only
when he was about to stab the deceased, that the appellant stabbed the deceased
on the chest which is a fragile portion of the body and can cause death when
stabbed by sharp weapon and also that the eyewitness was 13 unable to link the
abusing and the altercation of the deceased and appellant to the action of
stabbing, rules out the possibility of the offence being committed due to
`grave and sudden' provocation.

The
appellant clearly had time to deliberate and plan out the death of Havildar R C
Tiwari (the deceased). We, therefore, conclude that the first contention of the
learned counsel for the appellant has no merit and the appellant cannot get
benefit of the Exception I to Section 300 of I.P.C.

9) We now
turn to second point urged on behalf of the appellant. It is contended by
learned counsel that there was no intention on the part of the appellant to
cause the death of the deceased and, hence, Section 304 Part II of the IPC which deals with culpable homicide not
amounting to murder, will be attracted.

Alternatively,
it is contended that the appellant dealt one single blow on the deceased, and
hence, intention to cause death cannot be attributed to the appellant and,
hence, the act of the appellant will not fall under Section 302 of IPC but
under Section 304 Part II. In light of these contentions, it is necessary to
look into the wordings of the relevant provision. Section 304 of IPC reads:- 14
"Section 304. Punishment for culpable homicide not amounting to murder
Whoever commits culpable homicide not amounting to murder shall be punished
with imprisonment for life ,or imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine, if the act by
which the death is caused is done with the intention of causing death, or of
causing such bodily injury as is likely to cause death, Or with imprisonment of
either description for a term which may extend to ten years, or with fine, or
with both, if the act is done with the knowledge that it is likely to cause
death, but without any intention to cause death, or to cause such bodily injury
as is likely to cause death."

10)
Essentially the ingredients for bringing an act under Part II of the Section are:- (i) act is done with the knowledge
that it is likely to cause death, (ii) there is no intention to cause death, or
to cause such bodily injury as is likely to cause death.

11) The
first ingredient is easily solved by referring to the weapon used by the
appellant to strike a knife blow to the appellant. The appellant in this
instance has used a kitchen knife. A kitchen knife with sharp edges is a
dangerous weapon and it is very obvious that the appellant was aware that the
use of such a weapon 15 can cause death or serious bodily injury that is likely
to cause death. As far as the second ingredient is concerned, the appellant's
learned counsel contended that the fact that there was one single blow struck,
proves that there was no intention to cause death. In support of the plea,
reliance is placed on the decisions of this court in the case of Bhera v. State
of Rajasthan, [(2000) 10 SCC 225], Kunhayippu v. State of Kerala, [(2000) 10
SCC 307], Masumsha Hasansha Musalman v. State of Maharashtra, [(2000) 3 SCC
557], Guljar Hussain v. State of U.P., [1993 Supp (1) SCC 554], K. Ramakrishnan
Unnithan v. State of Kerala, [(1999) 3 SCC 309], Pappu v. State of M.P.,
[(2006) 7 SCC 391], Muthu v. State by Inspector of Police, Tamil Nadu, [(2007)
12 Scale 795]. A brief perusal of all these cases would reveal that in all
these cases there was a sudden and instantaneous altercation which led to the
accused inflicting a single blow to the deceased with a sharp weapon. Hence,
there has been conviction under Section 304 Part II as delivering a single blow
with a sharp weapon in a sudden fight would not point towards intention to
cause death. These cases are clearly distinguishable from the case at hand,
purely on the basis of facts. In the present case, there has been no sudden 16
altercation which ensued between the appellant and the deceased in the present
case. The deceased called the appellant `gandu' following which there was a
heated exchange of words between the two, the day before the murder. The next
day, however, the appellant concealed a kitchen knife in his lungi and went towards
the cot of the deceased and struck the deceased a blow on the right side of the
chest, while the deceased was sleeping. The fact that the appellant waited till
the next day, went on to procure a deadly weapon like a kitchen knife and then
proceeded to strike a blow on the chest of the appellant when he was sleeping,
points unerringly towards due deliberation on the part of the appellant to
avenge his humiliation at the hands of the appellant. The nature of weapon used
and the part of the body where the blow was struck, which was a vital part of
the body helps in proving beyond reasonable doubt, the intention of the
appellant to cause the death of the deceased. Once these ingredients are
proved, it is irrelevant whether there was a single blow struck or multiple
blows. This court in the case of State of Rajasthan v. Dhool Singh, [(2004) 12
SCC 546] while dismissing a similar contention has stated that, "It is the
nature of injury, the part of body where it is caused, the 17 weapon used in
causing such injury which are the indicators of the fact whether the respondent
caused the death of the deceased with an intention of causing death or not. In
the instant case, it is true that the respondent had dealt one single blow with
a sword which is a sharp-edged weapon measuring about 3 ft. in length on a
vital part of body, namely, the neck. This act of the respondent though
solitary in number had severed sternoclinoid muscle, external jugular vein,
internal jugular vein and common carotid artery completely leading to almost
instantaneous death. Any reasonable person with any stretch of imagination can
come to the conclusion that such injury on such a vital part of the body with a
sharp-edged weapon would cause death. Such an injury, in our opinion, not only
exhibits the intention of the attacker in causing the death of the victim but
also the knowledge of the attacker as to the likely consequence of such attack
which could be none other than causing the death of the victim. The reasoning
of the High Court as to the intention and knowledge of the respondent in
attacking and causing death of the victim, therefore, is wholly erroneous and
cannot be sustained."

18 12) In
the case of Virsa Singh v. State of Punjab, [AIR 1958 SC 465], this court while
referring to intention to cause death laid down:- "27. Once these four
elements are established by the prosecution (and, of course, the burden is on
the prosecution throughout) the offence is murder under s. 300, 3rdly. It does
not matter that there was no intention to cause death. It does not matter that
there was no intention even to cause an injury of a kind that is sufficient to
cause death in the ordinary course of nature (not that there is any real
distinction between the two). It does not even matter that there is no knowledge
that an act of that kind will be likely to cause death. Once the intention to
cause the bodily injury actually found to be proved, the rest of the enquiry is
purely objective and the only question is whether, as a matter of purely
objective inference, the injury is sufficient in the ordinary course of nature
to cause death. No one has a licence to run around inflicting injuries that are
sufficient to cause death in the ordinary course of nature and claim that they
are not guilty of murder. If they inflict injuries of that kind, they must face
the consequences; and they can only escape if it can be shown, or reasonably
deduced that the injury was accidental or otherwise unintentional."

This
court further observed:- "33. It is true that in a given case the enquiry
may be linked up with the seriousness of the injury,. For example, if it can be
proved, or if the totality of the circumstances justify an inference, that the
prisoner only intended a superficial; scratch and that by accident this victim
stumbled and fell on the sword or spear that was used, then of course the
offence is not murder. But that is not because the prisoner did not intend the
injury that he intended to inflict to be as serious as it turned out to be 19
but because he did not intend to inflict the injury in question at all. His
intention in such a case would be to inflict a totally different injury. The
difference is not one of law but one of fact; and whether the conclusion should
be one way or the other is a matter of proof, where necessary, by calling in
aid all reasonable inferences of fact in the absence of direct testimony. It is
not one for guess-work and fanciful conjecture."

13) In
Anil v. State of Haryana, [(2007) 10 SCC 274], while referring to Virsa Singh
(supra) this court laid down:- "19. In Thangaiya v. State of T.N., relying
upon a celebrated decision of this Court in Virsa Singh v. State of Punjab 1958
CriLJ 818 , the Division Bench observed:

17. These
observations of Vivian Bose, J. have become locus classicus. The test laid down
by Virsa Singh case for the applicability of Clause "thirdly" is now
ingrained in our legal system and has become part of the rule of law. Under
Clause "thirdly" of Section 300 IPC. culpable homicide is murder, if
both the following conditions are satisfied: i.e. (a) that the act which causes
death is done with the intention of causing death or is done with the intention
of causing a bodily injury; and (b) that the injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death. It must be proved
that there was an intention to inflict that particular bodily injury which, in
the ordinary course of nature, was sufficient to, cause death viz. that the
injury found to be present was the injury that was intended to be inflicted.

18. Thus,
according to the rule laid down in Virsa Singh case even if the intention of
the appellant was limited to the infliction of a bodily injury sufficient to
cause death in the ordinary course of nature, and did not extend to the intention
of causing death, the offence would be murder.

20 14) In
the aforesaid decision, this Court held that there is no fixed rule that
whenever a single blow is inflicted Section 302 would not be attracted.

15) It is
clear from the above line of cases, that it is necessary to prove first that
there was an intention of causing bodily injury; and that the injury intended
to be inflicted is sufficient in the ordinary course of nature to cause death.
From the evidence on record, it is very clear that the appellant intended to
cause death. In light of this finding, the evidence on record makes it clear
that Section 304 Part II of the IPC will not be attracted. Further PW-1, in his
cross- examination asserts that the deceased held his hand out after he was
stabbed in the chest. It is very likely that this action on the part of the
deceased prevented the appellant from stabbing him multiple number of times.
The argument might deserve some merit in case there is a sudden altercation
which ensues in the heat of the moment and there is no deliberate planning. In
the present case, as stated above there was due deliberation on the part of the
appellant and he assaulted the deceased a day after he misbehaved with him.

Hence,
the contention of the learned counsel that the appellant had 21 no intention to
cause death of the deceased has no merit and, accordingly, it is rejected.

16) We,
accordingly, hold that the conviction of the appellant for the offence under
Section 302 of Indian Penal Code, is not bad in law. In our opinion, the appeal
has no merit and, accordingly, it is dismissed.